# M/s Paramount Prop Build Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-04
- **Case number:** Writ C No. 12574 of 2020
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-paramount-prop-build-pvt-ltd-v-state-of-u-p-ors-46148
- **Pages:** 8

## Headnote

Act (16 of 2016) , S.3, Prior registration of
real estate project with RERA - U.P. Real
Estate
(Regulation
and
Development)
Rules (2016) , R.2(h) - "ongoing project"
means a project where development is
going on but excludes such projects
 where all development works have been
completed and application has been filed
with the competent authority for issue of
completion certificate - Held - mere filing
of an application with the competent
authority
for
issuance
of
completion
certificate would not bring project out
from the purview of an 'ongoing project',
in case development works of a project
have not been completed. (Para 18)

Promoter took objection to jurisdiction of RERA
on the ground that project is not 'ongoing
project' - as petitioner had already filed an
application before authority for issuance of
completion certificate - Held - RERA recorded
finding that the development works in respect of
the project were not completed & NOC relating
to some technical work had not been obtained -
project rightly held to be an 'ongoing project' -
Order passed by Real Estate Regulatory
Authority
directing
promoter
to
handover
possession of the apartments to the allottees &
to pay interest on delayed completion of project,
cannot be held to be without jurisdiction. (Para
19, 20)

Writ Petition dismissed. (E-4)

## Text

260 INDIAN LAW REPORTS ALLAHABAD SERIES
establishment of the real estate regulatory
authority for regulation and promotion of
the real estate sector and to ensure sale of
plot, apartment or building, as the case may
be, or sale of real estate project in an
efficient and transparent manner and to
protect the interest of consumers in real
estate sector; accordingly, the provisions of
the Act have to be read in the manner so as
to sub-serve the aforesaid objects.

12. Having regard to the aforesaid
facts and circumstances of the case, we are
of the considered view, that in case of
contravention of any obligation cast upon
the
promoters,
the
Authority
while
exercising jurisdiction under Section 38(1),
is fully empowered to award interest. The
impugned orders passed by the Authority,
therefore, cannot be said to be without
jurisdiction.

13. No other point has been argued
before us by the learned counsel for the
petitioner.

14. For all the reasons afore-stated,
we do not find any merit in this writ
petition.

15. Consequently, the writ petition
fails and is hereby dismissed.
----------
(2021)02ILR A260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 12574 of 2020
M/s Paramount Prop Build Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Syed Imran Ibrahim, Sri Gaurav Tripathi

Counsel for the Respondents:
C.S.C., Sri Ajeet Kumar Singh, Archana
Singh, Sri Wasim Masood

Real Estate (Regulation and Development)
Act (16 of 2016) , S.3, Prior registration of
real estate project with RERA - U.P. Real
Estate
(Regulation
and
Development)
Rules (2016) , R.2(h) - "ongoing project"
means a project where development is
going on but excludes such projects
 where all development works have been
completed and application has been filed
with the competent authority for issue of
completion certificate - Held - mere filing
of an application with the competent
authority
for
issuance
of
completion
certificate would not bring project out
from the purview of an 'ongoing project',
in case development works of a project
have not been completed. (Para 18)

Promoter took objection to jurisdiction of RERA
on the ground that project is not 'ongoing
project' - as petitioner had already filed an
application before authority for issuance of
completion certificate - Held - RERA recorded
finding that the development works in respect of
the project were not completed & NOC relating
to some technical work had not been obtained -
project rightly held to be an 'ongoing project' -
Order passed by Real Estate Regulatory
Authority
directing
promoter
to
handover
possession of the apartments to the allottees &
to pay interest on delayed completion of project,
cannot be held to be without jurisdiction. (Para
19, 20)

Writ Petition dismissed. (E-4)

(Delivered by Hon'ble Surya Praksh Kesarwani, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)
2 All. M/s Paramount Prop Build Pvt. Ltd. Vs. State of U.P. & Ors.
261

1. Heard learned counsel for the
petitioner, learned Standing Counsel for the
respondent no. 1 and Sri Wasim Masood,
learned counsel for the respondent no. 3.

2. The petitioner is promoter of
'Paramount Golf Foreste' project. The
respondent nos. 4 to 50 are allottees, who
have filed complaints before the Real
Estate Regulatory Authority, Gautam Budh
Nagar. By the impugned orders, the
authority has directed the petitioner to
handover possession of the apartments to
the allottees within sixty days and also to
pay interest on delayed completion of
project.

3. Aggrieved with the impugned
orders, the petitioners have filed present
writ petition.

4. This Court specifically confronted
the learned counsel for the petitioners with
the provisions of Section 43 (5) of the Real
Estate (Regulation and Development) Act,
2016 (hereinafter referred to as 'the Act,
2016) and as to whether the petitioner
would exercise the option to avail the
remedy of appeal but the learned counsel
for the petitioner stated that he desired to
raise a challenge to the jurisdiction of the
authority to pass the impugned orders and
in light of the same, he may be permitted to
press the writ petition and therefore the writ
petition may be heard.

5. With the consent of learned counsel
for the parties, the writ petition is being
finally heard without calling for a counter
affidavit.

6. Briefly stated facts of the present
case are that the petitioner is promoter of
'Paramount
Golf
Foreste'
project
for
construction of apartments. The respondent
nos. 4 to 50 booked the apartments with the
petitioner. The petitioner issued allotment
letters dated 10.08.2011 to them. However,
the petitioner could not complete the
project within the given time and could not
handover possession of the apartments to
the allottees. Consequently, the respondent
allottees filed complaint before the Real
Estate Regulatory Authority, Gautam Budh
Nagar alleging that the completion of
project is delayed by more than four years
and they claimed interest and possession of
the apartments. Before the authority, the
petitioner raised objection as to the
jurisdiction on the ground that the project
in question does not fall within the
definition of 'ongoing project' as defined in
Rule 2 (h) of the Uttar Pradesh Real Estate
(Regulation and Development) Rules, 2016
(in short 'the Rules, 2016). The authority
considered the evidence on record and also
the facts noticed in the inspection made by
the technical team on 24.07.2019 and
recorded a finding of fact that the project is
still incomplete and some No Objection
Certificates (for short 'NOC') including
NOC of fire fighting etc. relating to some
technical work had not been obtained. The
authority recorded findings of fact and
passed
the
impugned
orders
dated
18.10.2019.

7. Aggrieved with the impugned
orders dated 18.10.2019 directing the
petitioner to handover the possession of the
apartments to the allottees within sixty days
and to pay interest on delayed completion
of project, the petitioner has filed the
present writ petition.

8. Learned counsel for the petitioner
submits that the project of the petitioner is
not 'ongoing project' inasmuch as the
petitioner had applied for completion
certificate with the Uttar Pradesh State
Industrial Development Corporation on
262 INDIAN LAW REPORTS ALLAHABAD SERIES
13.10.2016 and therefore in terms of the
provisions of Rule 2 (h) of the Rules, 2016,
the project in question is not 'ongoing
project' and consequently, the project was
not required to be registered under Section
3 (1) of the Act, 2016, and the RERA
Authority did not have the jurisdiction to
look into the complaint made by the
allottees.

9. No other submissions have been
made before us by learned counsel for the
petitioners.

10. We have carefully considered the
submissions of learned counsel for the
petitioners.

11. The provisions of Sections 3 and
59 of the Act, 2016 which are relevant for
the purposes of the controversy involved in
the present writ petition, are reproduced
below:-

"3. Prior registration of real
estate
project
with
Real
Estate
Regulatory Authority--(1) No promoter
shall advertise, market, book, sell or offer
for sale, or invite persons to purchase in
any manner any plot, apartment or
building, as the case may be, in any real
estate project or part of it, in any planning
area, without registering the real estate
project with the Real Estate Regulatory
Authority established under this Act:

Provided that projects that are
ongoing on the date of commencement of
this Act and for which the completion
certificate has not been issued, the
promoter shall make an application to the
Authority for registration of the said project
within a period of three months from the
date of commencement of this Act:

Provided further that if the
Authority thinks necessary, in the interest
of allottees, for projects which are
developed beyond the planning area but
with the requisite permission of the local
authority, it may, by order, direct the
promoter of such project to register with
the Authority, and the provisions of this Act
or
the
rules
and
regulations
made
thereunder, shall apply to such projects
from that stage of registration.

(2)
Notwithstanding
anything
contained in sub-section (1), no registration
of the real estate project shall be required --

(a) where the area of land
proposed to be developed does not exceed
five hundred square meters or the number
of apartments proposed to be developed
does not exceed eight inclusive of all
phases:

Provided that, if the appropriate
Government considers it necessary, it may,
reduce the threshold below five hundred
square meters or eight apartments, as the
case may be, inclusive of all phases, for
exemption from registration under this Act;

(b) where the promoter has
received completion certificate for a real
estate project prior to commencement of
this Act;

(c) for the purpose of renovation
or repair or re-development which does not
involve marketing, advertising selling or
new allotment of any apartment, plot or
building, as the case may be, under the real
estate project.

Explanation.--For the purpose of
this section, where the real estate project is
to be developed in phases, every such
phase shall be considered a stand alone real
estate project, and the promoter shall obtain
registration under this Act for each phase
separately.

59.
Punishment
for
non
registration under section 3--(1) If any
promoter contravenes the provisions of
section 3, he shall be liable to a penalty
2 All. M/s Paramount Prop Build Pvt. Ltd. Vs. State of U.P. & Ors.
263
which may extend upto ten percent of the
estimated cost of the real estate project as
determined by the Authority.

(2) If any promoter does not
comply with the orders, decisions or
directions issued under sub-section (1) or
continues to violate the provisions of
section 3, he shall be punishable with
imprisonment for a term which may extend
upto three years or with fine which may
extend upto a further ten percent of the
estimated cost of the real estate project, or
with both."

12. We may also advert to Rule 2 (h)
of the Rules, 2016.

"2(h) "ongoing project" means a
project where development is going on and
for which completion certificate has not
been issued but excludes such projects
which fulfill any of the following criteria
on the date of notification of these rules:

(i) where services have been
handed over to the Local Authority for
maintenance.

(ii) where common areas and
facilities have been handed over to the
Association for the Residents Welfare
Association for maintenance.

(iii) where all development work
have been completed and sale/lease deeds
of
sixty
percent
of
the
apartments/houses/plots
have
been
executed.

(iv) where all development works
have beencompleted and application has
been filed with the competent authority for
issue of completion certificate."

13. It has been admitted before us that
clauses (i), (ii) and (iii) of Rule 2 (h) of the
Rules, 2016 are not attracted in the present
case and that the claim of the petitioner for
exclusion from the definition of 'ongoing
project' is on the basis of clause (iv) of Rule
2 (h) of the ground that the petitioner had
already filed an application before the
competent
authority
for
issuance
of
completion certificate.

14. In the impugned orders, the
authority has recorded a finding of fact
based on consideration of relevant evidence
on record including the inspection report
dated 24.07.2019 that the project is still
incomplete. The finding recorded by the
authority in the impugned orders that the
project is still incomplete and occupancy
certificate has yet not been issued is the
finding of fact based on consideration of
evidence on record. For ready reference,
the relevant portion of one of the impugned
orders
dated
18.10.2019
passed
in
Complaint No. N.C.r. 144030381/2019
(Pinki
Sharma
and
others
Vs.
M/s
Paramount
Probuild
Private
Ltd.)
is
reproduced below.

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djus ds fy, izkf/kdj.k dh ihB dh vksj ls foi{kh
}kjk ;w- ih- ,l- vkbZ- Mh- lh- esa fnukad 01-05-2017
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fy, vko';d leLr vfHkys[kksa tSls fd &Qk;j ls¶Vh
lkfVZfQdsV]
fy¶V lkfVZfQdsV]
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ekax dh x;hA ftl ij foi{kh }kjk VkWoj LVwfM;ksa
vikVZesUV] ikbZu o vksd dh vfXu'keu vukifRr
izek.k i= fnukad 26-12-2017] VkWoj &, ds vfXu'keu
,oa lqj{kk izek.k i= fnukad 15-09-2018] vf/k"Bkfir 5
ua0 fy¶V dk fujh{k.k izek.k i= fnukad 07-11-2017]
vf/k"Bkfir 4 ua0 fy¶V dk fujh{k.k izek.k i= fnukad
07-11-2017] tujsfVax lsV dk fujh{k.k izek.k i=
fnukad 11-01-2018] dh Nk;kizfr;ka nkf[ky dh x;h]
ijUrq lh- ,- ,oa bathfu;lZ lkfVZfQdsV] iznw"k.k foHkkx]
i;kZoj.k foHkkx] ,;jiksVZ vFkkWfjVh ds vukifRr izek.k
i= dh izfr;ka nkf[ky ugha dh x;h gSA foi{kh }kjk
ihB dks voxr djk;k x;k fd Qk;j ,u-vks-lh- iwoZ
es izksfotuy tkjh fd;s x;s FksA mijksDr izek.k i=ksa
ds izkIr gksus ds mijkUr izkf/kdj.k ds ihBklhu
vf/kdkjh ds laKku esa ;g u;k rF; izdk'k esa vk;k
fd foi{kh dh ifj;kstuk fnukad 01-05-2017 ls iwoZ
264 INDIAN LAW REPORTS ALLAHABAD SERIES
ugha Fkk vkSj vks-lh@lh-lh ds ekudksa dks fcuk iw.kZ
fd;s foi{kh }kjk ;w-ih-,l-vkbZ-Mh-lh- dks vks-lh gsrq
vkosnu fd;k x;kA ,sls esa izFke n"V;k ;g izrhr
gksrk gS fd iz'uxr ifj;kstuk dk jsl esa iathd`r
djk;k tkuk visf{kr gSA

blds vfrfjDr izkf/kdj.k dh ihB dh
vksj ls fnukad 24-07-2019 dks rduhdh Vhe }kjk
LFkyh; tkWp djk;h x;h] ftldh tkap vk[;k
miyC/k gksus ds i'pkr ;g ik;k fd ifj;kstuk esa dqy
8 VkWoj] tks fd VkWoj & A.B,C,D,OAK,PINE
uke ls fpfUgr gS vkSj foYykt ekStwn gSA VkWoj&
OAK ds vUrxZr pkj fy¶V ekStwn jgsxs] ftuesa ls
,d fy¶V gh vkWijs'kuy gS vkSj 'ks"k fy¶V esa
edsfudy dk;Z gksuk ckdh gSA VkWoj& PINE ds
vUrxZr 7 fy¶V dk fuekZ.k dk;Z gksuk gS] ftues 4
fy¶V dk;Zjr gS o 'ks"k 3 fy¶V esa dk;Z vHkh iw.kZ
gksuk ckdh gS A VkWoj& A,B,C,D ds vUrxZr yxHkx
dk;Z iw.kZ gS] bu VkWojksa esa 2 fy¶V esa ls ,d fy¶V
dk;Zjr gS o 1 fy¶V dk dk;Z vHkh iw.kZ gksuk ckdh gS]
VkWojksa ds vUrxZr vHkh Qkbuy fQfuf'kax dk;Z vHkh
'ks"k gSA

TkgkW vk[;k esa fu"d"kZ ds :i esa ;g ik;k
x;k fd ifj;kstuk ds vUrxZr vHkh fuekZ.k dk;Z tSls
fd fy¶V dh baLVkys'ku] fQfuf'kax dk;Z vkfn gksus
vHkh ckdh gSA Qk;j QkbZfVax ds dk;Z esa vHkh fLizaDayj
vkfn gksuk vHkh 'ks"k gS o Qk;j QkbZfVax dh ,u-vkslh- dqN VkWojksa esa vHkh izkIr ugha dh x;h gSA
ifj;kstuk LFky ij dk;Z cgqr gh /kheh xfr ls fd;k
tk jgk gSA tkWp vk[;k ls ;g Hkh Li"V gS fd
ifj;kstuk vHkh iw.kZ ugha gS vkSj dqN VkWojksa dh Qk;j
,u-vks-lh- izkIr fd;k tkuk vHkh 'ks"k gSA

;ag Hkh mYys[kuh; gS fd m0iz0 Hkw&lEink
1⁄4fofu;eu ,oa fodkl1⁄2 fu;ekoyh] 2016 ds fu;e
21⁄4h1⁄2 esa jsjk ds vUrxZr vkWuxksbZx ifj;kstuk dks
ifjHkkf"kr djrs gq, pkj viokn Hkh fn;s x;s gSa] tks
fd fuEuor gS%&

(h) "ongoing project" means a
project where development is going on
and for which completion certificate has
not been issued but excludes such
projects which fulfill any of the following
criteria on the date of notification of
these rules:

(i) where services have been
handed over to the Local Authority for
maintenance.

(ii) where common areas and
facilities have been handed over to the
Association for the Residents Welfare
Association for maintenance.

(iii)
where
all
development
work have been completed and sale/lease
deeds
of
sixty
percent
of
the
apartments/houses/plots
have
been
executed.

(iv)
where
all
development
works
have
beencompleted
and
application has been filed with the
competent
authority
for
issue
of
completion certificate.

mDr fu;e 2 1⁄4h1⁄2 (iv) where all
development works have been completed
and application has been filed with the
competent
authority
for
issue
of
completion certificate ds vUrxZr iz'uxr
ifj;kstuk ds lHkh fodkl dk;Z vHkh iw.kZ ugha fd;s
x;s gS vkSj foi{kh }kjk fcuk lh- lh- ds ekudksa iw.kZ
fd;s gq, lh- lh- gsrq ;w-ih- ,l- vkbZ- Mh- lh- dks
vkosnu fd;k x;k gS] tks fd mfpr ugha gSA foi{kh
}kjk ifj;kstuk dks iathdj.k djk;s tkus ds lEcU/k
esa ihB ds le{k LohdkjksfDr dh x;hA ,sls esa
iz'uxr ifj;kstuk dks jsjk esa iathdj.k djk;s tkuk
visf{kr gSA

izkf/kdj.k esa foi{kh dh ifj;kstuk ds
lEcU/k esa tkWp ds nkSjku ;g rF; Hkh izdk'k esa vk;k
gS fd foi{kh }kjk ifj;kstuk Golf foreste ds
iathdj.k gsrq iwoZ esa vkosnu fd;k x;k Fkk] ijUrq
ifj;kstuk dks iathd`r djk;s tkus gsrq vko';d
vfHkys[k ,oa vkSipkfjdrk;sa iw.kZ u gksus ds dkj.k
foi{kh dh ifj;kstuk iathd`r ugha gqbZA izkIr fjiksVZ ds
vuqlkj ekufp= Lohd`fr ,oa lsaX'ku ysVj fnukad 1306-2011 ls 7 o"kZ rd gh oS/k gSA foi{kh }kjk
vfrfjDr fuekZ.k gsrq iqujhf{kr Hkou ekufp= ij
fnukad 04-01-2013 dks fjokbZTM Lohd`fr izkIr dh
x;h] ijUrq ekufp= ,oa lasX'ku ysVj ds foLrkj.k gsrq
l{ke izkf/kdj.k ls vuqefr iznku ugha dh x;hA lh-
,- ,oa bathfu;lZ lkfVZfQdsV ,oa Qk;j ,u-vks-lh
miyC/k ugha djk;h x;hA ,sls esa ifj;kstuk vkaf'kd
:i ls viw.kZ gS] ifj;kstuk dk dEiyh'ku@vksD;wisUlh
izek.k i= Hkh ugha fy;k x;k gSA foi{kh leLr
vkSipkfjdrkvksa ,oa vko';d vfHkys[kksa dks iw.kZ dj
ifj;kstuk dks jsjk esa iathd`r djkuk lqfuf'pr djsaA

vr% iz'uxr ifj;kstuk jsjk ds {ks=kf/kdkj
esa gSA mijksDrkuqlkj ls Li"V gksrk gS fd ifj;kstuk
dks jsjk esa iathd`r djk;k tkuk vko';d gS vkSj
foi{kh }kjk jsjk vf/kfu;e dh /kkjk & 3 dk mYya?ku
2 All. M/s Paramount Prop Build Pvt. Ltd. Vs. State of U.P. & Ors.
265
fd;k x;k gSA pwafd iz'uxr ifj;kstuk vkWuxksbZx
ifj;kstuk dh Js.kh esa vkrk gSA bl lEcU/k esa
Hkw&lEink 1⁄4fofu;eu ,oa fodkl1⁄2 vf/kfu;e 2016 dh
/kkjk &03 dks i<+k tkuk vR;ar egRoiw.kZ gS] ftlesa
Li"V :i ls mYysf[kr gS fd%&

REGISTRATION
OF
REAL
ESTATE
PROJECT
AND
REGISTRATION OF REAL ESTATE
AGENTS.

3.--(1) No promoter shall advertise,
market, book, sell or offer for sale, or invite
persons to purchase in any manner any plot,
apartment or building, as the case may be, in
any real estate project or part of it, in any
planning area, without registering the real
estate project with the Real Estate Regulatory
Authority established under this Act:

Provided that projects that are
ongoing on the date of commencement of this
Act and for which the completion certificate
has not been issued, the promoter shall make
an application to the Authority for registration
of the said project within a period of three
months from the date of commencement of
this Act:

Provided
further
that
if
the
Authority thinks necessary, in the interest of
allottees, for projects which are developed
beyond the planning area but with the
requisite permission of the local authority, it
may, by order, direct the promoter of such
project to register with the Authority, and the
provisions of this Act or the rules and
regulations made thereunder, shall apply to
such projects from that stage of registration.

(2)
Notwithstanding
anything
contained in sub-section (1), no registration
of the real estate project shall be required --

(a) where the area of land proposed
to be developed does not exceed five hundred
square meters or the number of apartments
proposed to be developed does not exceed
eight inclusive of all phases:

Provided that, if the appropriate
Government considers it necessary, it may,
reduce the threshold below five hundred
square meters or eight apartments, as the
case may be, inclusive of all phases, for
exemption from registration under this Act;

(b) where the promoter has
received completion certificate for a real
estate project prior to commencement of
this Act;

(c) for the purpose of renovation
or repair or re-development which does not
involve marketing, advertising selling or
new allotment of any apartment, plot or
building, as the case may be, under the real
estate project.

Explanation.--For the purpose of
this section, where the real estate project is
to be developed in phases, every such
phase shall be considered a stand alone real
estate project, and the promoter shall obtain
registration under this Act for each phase
separately.

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LvsV izkstsDV Hkw&[k.M ;k vikVZesUV dh cqfdax] fodz;
o foKkiu vkfn u djus lEca/kh izkfo/kku gS vkSj
vkWuxksbZx izkstsDV~l ds jftLVas'ku gsrq Li"V izkfo/kku
of.kZr gSA vf/kfu;e ds izkfo/kkuksa ds vuqlkj ,sls lHkh
izkstsDV~l vkWuxksbZx ifj;kstuk dh Js.kh esa lEefyr gS]
ftUgsa jsjk vkus ls iwoZ l{ke izkf/kdj.k ls iw.kZrk izek.k
i= izkIr ugha gqvk gSA foi{kh dks iaz'uk/khu izkstsDV ds
lEca/k esa l{ke izkf/kdj.k ls iw.kZrk izek.k i= vHkh
rd izkIr ugha gqvk gSA ,sls esa iaz'uk/khu izkstsDV]
vkWuxksbZx ifj;kstuk gksus ds dkj.k bl ij vf/kfu;e
ds izkfo/kku ykxw gksxsaA fu"d"kZr% vf/kfu;e dh /kkjk&
3 esa of.kZr izkfo/kkuksa ds vuqlkj iz'uk/khu izkstsDV jsjk
dh ifjf/k esa vkus ls jftLVas'ku gksus ;ksX; gSA foi{kh
viuh ifj;kstuk dks jsjk eas iathdj.k djkuk lqfuf'pr
djsaA lkFk gh foi{kh dks /kkjk& 3 ds v/khu
jftLVahdj.k us fd;s tkus ds dkj.k vf/kfu;e dh
/kkjk& 59 ds vUrxZr n.M dk Hkkxh gSA vf/kfu;e dh
/kkjk& 59 esa Li"V :i ls mYysf[kr gS fd%&

59--(1)
If
any
promoter
contravenes the provisions of section 3, he
shall be liable to a penalty which may
extend upto ten percent of the estimated
cost of the real estate project as determined
by the Authority.
266 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) If any promoter does not
comply with the orders, decisions or
directions issued under sub-section (1) or
continues to violate the provisions of
section 3, he shall be punishable with
imprisonment for a term which may extend
upto three years or with fine which may
extend upto a further ten percent of the
estimated cost of the real estate project, or
with both.

mijksDr ls ;g Li"V gS fd ;fn dksbZ
lEizorZd /kkjk&3 ds micU/kksa dk m+Yya?ku djrk gS]
rks og ,slh fdlh 'kkfLr ds fy, tks izkf/kdj.k }kjk
;Fkk vo/kkfjr Hkw&lEink ifj;kstuk dh vuqekfur
ykxr ds 10 izfr'kr rd dh gks ldsxh] nk;h gksxkA

lfpo] jsjk bl lEcU/k eas lEizoZrd ds
fo:) n.MkRed dk;Zokgh djrs gq, vFkZnaM vf/kjksfir
dj ifj;kstuk dks jsjk esa iathd`r djk;s] lkFk gh
rduhdh lykgdkj ifj;kstuk ds iathdj.k ds lEcU/k
esa vko';d dk;Zokgh djsaA

ekuuh; mPp U;k;ky;] ckEcs us fjV
fiVh'ku dzekad 908@2018^^ eksgEen tSu [kku fo:)
egkjk"Va fj;y ,LVsV vFkkWfjVh o vU;^^ ds izdj.k esa
lquokbZ mijkUr vius ikfjr vkns'k fnukad 31-07-2018
esa ;g Hkh Li"V fd;k x;k gS fd jsjk esa viathd`r
fj;y ,LVsV izkstsDV~l ds fo:) Hkh izkf/kdj.k }kjk
lquokbZ dh tk ldrh gSA Li"V gS fd iz'uk/khu
izkstsDV~l ds fo:) Hkh izkf/kdj.k }kjk lquokbZ dh tk
ldrh gSA Li"V gS fd iz'uk/khu izkstsDV ds jsjk eas
jftLVMZ u gksus ek= ds vk/kkj ij f'kdk;rdrkZ }kjk
izLrqr f'kdk;r vLohdkj ugha dh tk ldrh gSA
foi{kh }kjk vius izfrokn i= esa layXud ds :i esa
fn;s x;s ihB ds vkns'k fnukad 31-01-2019] f'kdk;r
la[;k& 9201819806 tlohj ukxj cuke iSjkekmUV
izksfcYM esa Hkh foi{kh }kjk xyr rF; fn;s x;s Fks fd
mudh ifj;kstuk iw.kZ vkSj fnukad 13-10-16 dks muds
}kjk iw.kZrk izek.k i= gsrq vkosnu fd;k tk pqdk gS]
ftldk fuLrkj.k foi{kh }kjk fn;s x;s rF; ds vk/kkj
ij fd;k x;k] ijUrq ckn esa izkf/kdj.k ds tkWp djk;s
tkus ds mijkUr ihBklhu vf/kdkjh ds laKku esa ;g
u;k rF; ik;k fd ifj;kstuk viw.kZ gS vkSj vHkh
fodkl dk;Z djk;s tkus vHkh 'ks"k gSA vr% iz'uk/khu
izkstsDV ds fo:) izLrqr f'kdk;r jsjk esa lquokbZ ;ksX;
gksus ls foi{kh dh vkifRr Lohdkj ;ksX; ugha gSA
rnuqlkj fcUnq la0 1 fuLrkfjr fd;k tkrk gSA"

15. As noticed above, Section 3 of the
Act, 2016 provides for prior registration of
real estate projects with the Real Estate
Regulatory Authority, and in terms of subsection (1) thereof no promoter shall
advertise, market, book, sell or offer for
sale, or invite persons to purchase in any
manner any plot, apartment or building, as
the case may be, in any real estate project
or part of it, in any planning area, without
registering the real estate project with the
Real
Estate
Regulatory
Authority
established under the Act.

16. Under the proviso to sub-section
(1) in respect of projects that are ongoing
on the date of commencement of the Act
and for which the completion certificate
has not been issued, the promoter shall
make an application to the Authority for
registering the said project within a period
of three months from the date of
commencement of the Act. This is subject
to certain exclusions provided for under the
Rule, which are as follows :-

(i) where services have been
handed over to the Local Authority for
maintenance.

(ii) where common areas and
facilities have been handed over to the
Association or the Residents Welfare
Association for maintenance.

(iii) where all development work
have been completed and sale/lease deeds
of
sixty
percent
of
the
apartments/houses/plots
have
been
executed.

(iv) where all development works
have been completed and application has
been filed with the competent authority for
issue of completion certificate.

17. Clause (iv) of Rule 2 (h) excludes
from the ambit of the term 'on going
project',
such
projects
where
all
development works have been completed
and application has been filed with the
2 All. M/s Badri Narayan Shukla Vs. State of U.P. & Ors.
267
competent authority for issue of completion
certificate.

18. It therefore follows that in the case
of a project where all development works
have not been completed, the mere filing of
an application with the competent authority
for issuance of completion certificate would
not bring it out from the purview of an
'ongoing project', as defined under Rule 2 (h)
of the Rules, 2016. Such projects would
accordingly be held to be 'ongoing projects'
and in terms of the proviso to Section 3 (1) of
the Act, 2016, the promoter would be liable
to make an application to the authority for
registration of the said project within the
stipulated time period.

19. In the instant case, the findings
recorded by the RERA Authority which are
based on a consideration of the material
evidence on record are to the effect that the
development works in respect of the project
were not completed. Accordingly, the project
cannot be said to be excluded under Rule 2
(h). The project has therefore rightly been
held to be an 'ongoing project' within the
meaning of Rule 2 (h) and it would require
registration under the proviso to Section 3 (1)
of the Act, 2016. Accordingly the matters
pertaining thereto would fall within the
jurisdiction of the RERA Authority.

20. The impugned orders passed by the
RERA Authority, therefore, cannot be held to
be without jurisdiction.

21. Counsel for the petitioner has not
been able to point out any material error or
perversity in the findings of fact recorded by
the RERA Authority, in this regard, in the
impugned orders.

22. Under the circumstances, no
interference
can
be
made
with
the
impugned orders under Article 226 of the
Constitution of India inasmuch as the
matter is concluded by findings of fact.

23. For all reasons aforestated, the
writ petition is dismissed.
----------
(2021)02ILR A267
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 13291 of 2020

M/s Badri Narayan Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vikrant Pandey, Sri Santosh Kumar
Shukla

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.226 - Writ
jurisdiction - extraordinary remedy -
Contractual matters - Maintainability -
Pure contractual obligation in the absence
of any statutory complexion would not be
enforceable through a writ. - In case
where contract entered into between
State & person aggrieved is of non -
statutory character and relationship is
governed purely in terms of contract
between
parties,
in
such
situations
contractual obligations are matters of
private law and writ would not lie to
enforce civil liability arising purely out of
contract - Proper remedy would be to file
civil suit for claiming damages, injunctions
or
specific
performance
or
such
appropriate reliefs in civil court - only